Two Disputes over the Words " And/or" Leave Jurors Confused And/or Frustrated

By Ralph Cipriano
Philadelphia Priest Abuse Trial Blog
June 5, 2012

http://www.priestabusetrial.com/2012/06/trial-that-could-hang-on-two-andors.html

Lawyers in the Archdiocese of Philadelphia sex abuse case spent Monday and Tuesday haggling with Judge M. Teresa Sarmina over the meaning of two charges to the jury. Both disputes came in answer to questions raised by jurors over the words "and/or."

When the haggling was over, the first dispute was resolved with an "and or," to the detriment of Msgr. William J. Lynn, because it gave the jury more latitude to find him guilty of a conspiracy charge. The resolution of the second dispute with simply an "and" appeared to be a gift to the other defendant in the case, Father James J. Brennan, because it made it more difficult to convict him on a charge of endangering the welfare of a child.

On Tuesday, jurors appeared confused over the disparity in the judge's answers. In effect, they sent a note to the judge, asking why what was good for the goose wasn't good for the gander.

The judge told jurors they had asked an "astute question," but then she said she basically couldn't give them a straight answer. "It's for legal reasons," she said. Five minutes later, the jury sent another note to the judge. It was 3:20, but the jurors wanted to go home for the day, an hour earlier than usual.

The first dispute was over the conspiracy charge filed against Msgr. Lynn. The monsignor is charged with conspiring to endanger the welfare of children, specifically a 10-year-old altar boy who was sexually abused by Father Edward V. Avery.

In order to find the monsignor guilty, the jury originally was given the choice of finding that a conspiracy existed between Msgr. Lynn AND Father Avery AND/OR any other persons engaged in the conspiracy, named or unnamed.

The law says a conspiracy is an agreement between two or more people to break the law. The original charge to the jury appeared to favor the defense, as during ten weeks of trial testimony, there wasn't any evidence introduced to show that the monsignor AND Father Avery ever got together to plot any crime.

After the haggling between the judge and the lawyers, however, the jury was instructed on Monday that they could find a conspiracy between any two parties, including Msgr. Lynn AND/OR Father Avery, AND/OR any other persons engaged in a conspiracy, either named or unnamed. In other words, Father Avery did not have to be included in order for the jury to find that a conspiracy existed.

So if the jury believed that Msgr. Lynn was conspiring with the late Cardinal Bevilacqua, or the late Msgr. James E. Molloy, or the late Elvis Presley for that matter, they could nail Lynn on the conspiracy charge.

It was a resolution that appeared to favor the prosecution.

Dispute No. 2 involved a charge of endangering the welfare of children filed against Father Brennan.

The jury asked, in order to find Father Brennan guilty of endangerment, did they have to find a "continuing course of conduct" that had endangered Mark Bukowski, the alleged victim of an attempted rape by Brennan, AND/OR any other minors supervised by Father Brennan.

The answer that came back was that in order to convict Father Brennan on the endangerment charge, the jury must find that the priest's alleged continuing course of conduct endangered Mark Bukowski AND other minors.

Since there are no other known alleged victims of Father Brennan, the answer to the jury question appeared to clearly benefit Father Brennan.

Assistant District Attorney Patrick Blessington argued that the judge should tell the jury that the reason why what was good for the goose wasn't good for the gander involved differing statute of limitations. "Tell them why," the prosecutor implored the judge. But lawyers for Msgr. Lynn did not approve of that proposed solution, especially Thomas Bergstrom. Alan Tauber, another lawyer for Lynn, warned Judge Sarmina that if she got into the statute of limitations issue, she would be opening up Pandora's box.

But it Bergstrom's objections that most annoyed Blessington.

"Every time he [Bergstrom] stand up, it makes my blood boil," Blessington yelled to the judge.

"Maybe it's personal," the judge suggested.

The jury is scheduled to resume deliberations Wednesday morning at 9:15 a.m.